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[2024] ZAECMKHC 2
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Fourie v Minister of Justice and Correctional Services - Appeal (39/2023) [2024] ZAECMKHC 2 (16 January 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
APPEAL
CASE NO: 39 /2023
REPORTABLE:
YES/NO
In
the matter between:
ANTONIA
NOLAN FOURIE
APPELLANT
and
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
RESPONDENT
APPEAL JUDGMENT
CENGANI-MBAKAZA AJ:
Introduction
[1]
The appellant is a sentenced prisoner, serving his sentence at
Waainek Correctional
Facility in Makhanda. The appeal arises from the
judgment of the Magistrate in Makhanda (the trial court), dismissing
the appellant’s
claim for damages. The claim is premised on an
alleged assault by the members of the respondent upon the appellant
whilst they
were performing their duties.
[2]
I will refer to the parties as they were in the trial court.
Grounds of appeal
[3]
The plaintiff appeals against the trial court’s findings which
are
, inter alia,
as follows:
(a)
There was no evidence that the plaintiff
had been treated in a cruel or inhuman fashion;
(b)
The extent of the injuries was
uncertain and exaggerated;
(c)
His version was riddled with
inconsistencies, improbabilities and material contradictions; and
(d)
The plaintiff failed to discharge the
onus of proving on a balance of probabilities that the injuries he
sustained were as a result
of being assaulted by the members of the
defendant.
The Pleadings
[4]
The plaintiff alleged that on 13 January 2019, he was viciously
assaulted by correctional
officials. He claimed to have sustained
injuries for which he received medical treatment. He also claimed to
have experienced emotional
trauma, pain and suffering and further
averred that the damages he had suffered amounted to R150 000
(One hundred and fifty
thousand rand) which is set out as follows:
(i)
R50 000 (Fifty thousand rand), for
contumelia
,
that is, humiliation, pain and suffering, shock, scarring and
disfigurement.
(ii)
R100 000 for loss of amnesties of life
and temporary disability.
(iii)
Additionally, the plaintiff claimed
interest tempore morae to the amount of R150 000 (One hundred
and fifty thousand rands)
calculated at the prevailing prescribed
mora
interest rate of 10.25% per annum, from the date of service of
summons to date of final payment.
[5]
In his amended plea, the defendant alleged that on the aforementioned
date, the members
searched A-Unit cell 27. During the search, the
correctional officials found unauthorised items under the plaintiff’s
bed.
He became aggressive and a tussle between him and one of the
Correctional Officials, Sergeant Xothovu (Sgt Xothovu), ensued. The
defendant denied the allegations of assault and the injuries suffered
by the plaintiff.
Factual background
[6]
It is common cause that on 13 January 2019, the correctional
officials conducted a
routine check at cell number 27. They seized
contraband items which were described as knives and cell phones. In
the process of
a routine check, a scuffle ensued between the
plaintiff and Sgt Xotovu.
[7]
In his testimony, the plaintiff alleged that Sgt Xothovu asked who
the owner of the
items was. He denied the knowledge of the said
items. Sgt Xothovu pressed him on his shoulder forcing him to sit
down. Persistently,
he asked who the owner of the contraband items
was. At that moment he pushed him down and struck him repeatedly with
open hands
on his back all the while hurling insults at him.
[8]
When the plaintiff stood up, he forcefully pushed him down and gave
him an open-handed
slap. When the plaintiff tried to flee, Sgt
Xothovu hit him with a baton on his head and shoulders repeatedly.
[9]
The plaintiff jumped over one of the beds, and Sgt Xothovu struck him
with a baton
on his back. Another member came from the front and hit
the plaintiff in the face. In an attempt to defend himself, the
plaintiff
tried to block the blows while Sgt Xothovu together with
this member struck the plaintiff with batons. Subsequently, the
plaintiff
moved towards the corner of the cell but one of the members
trapped his feet and he fell on top of the cupboard. At that moment
they all proceeded to trample on him and strike him with batons.
[10]
While seeking refuge by hiding under the bed, one of the members
forcibly pulled his leg and
the assault continued. The plaintiff
testified that they assaulted him until he became momentarily
unconscious. Subsequently, he
was transported to the hospital inside
the prison facility. After an hour and a half, he was discharged.
Upon returning to his
cell he took photographs of all the injuries he
sustained due to the assault. The photographs were admitted in the
trial proceedings
by consent between the parties.
[11]
After a period of four days from the date of the incident, the
plaintiff sought medical attention
from Doctor Dwyer (the medical
expert), who examined him and compiled a medical report commonly
known as a J88. The medical report
was admitted as an exhibit in the
trial proceedings. The medical expert documented a mixture of eleven
bruises and abrasions on
the plaintiff’s back. In his
testimony, the medical expert explained the difference between
abrasions and bruises. According
to the medical expert, bruises are
caused by a moderate form of force and the abrasions are caused by a
more severe form of force.
More importantly, he observed that
the abrasions were grazed, an indication that a high degree of force
was used. Furthermore,
he testified the tramlines or linear marks on
the plaintiff’s back suggested a possible baton-related
assault. The medical
expert noted crusted abrasions on the left
eyebrow, abrasions on the cheek, a wound on the head, bruises and
abrasions around both
eyes, on the lower limbs and the side of the
thigh. In conclusion, the medical expert testified that the plaintiff
suffered multiple
injuries. In medical terms multiple injuries refer
to more than three injuries in one’s body, so he testified.
With this
evidence, the plaintiff closed his case.
[12]
Sgt Xothovu’s account diverged from that of the plaintiff in
the following respects: After
he seized the contrabands, the
plaintiff advanced towards him in an attempt to dispossess him of the
items. The plaintiff punched
him on his left jaw. Sgt Xothovu ordered
the plaintiff to sit down, however, the plaintiff squatted and stood
up again. He then
struck Sgt Xothovu with a fist. A scuffle ensued
between the plaintiff grabbed hold of his right- side of the waist
area.
[13]
He attempted to escape by running in between the beds where one
member restrained him. Sgt Xothovu
further denied that the plaintiff
was assaulted by correctional officials. He testified that he
witnessed the plaintiff bleeding
on his head suggesting that he may
have bumped against the steel beds whilst he was trying to escape.
[14]
Mr Edward Olivier’s (Olivier) role within the Correctional
Service Department where he
worked since 2018, was primarily focused
on reporting incidents of assaulted offenders and addressing various
complaints. Acting
on the instruction of one of the correctional
officials who was involved in the scuffle, he recorded that the
plaintiff sustained
small cuts on the right side of the head, and his
left eye and had bruises on the left arm. When questioned on whether
he interviewed
the plaintiff, he answered in the negative. He further
testified that Sgt Xothovu refused to comment about the report
because it
was already compiled when he was interviewed.
[15]
When the plaintiff was transported to the hospital, he was seen by
Nurse Feni (the nurse) who
has been working in the prison facility
since 2016. He holds an honours degree in nursing and his credentials
were never placed
in dispute. He observed that the plaintiff was
bleeding on the right side of his head. He cut the plaintiff’s
hair to examine
the nature of the wound. He observed that the wound
was superficial and that there was no need to stitch it. He applied
betadine
ointment on the wound and bandaged it. He further noticed
that the plaintiff had excruciating pains all over his body. Upon
further
examination, he noticed linear marks on his back.
[16]
Under cross-examination, the nurse gave an alternative explanation
for the injuries, suggesting
that the linear marks might have been
caused by bumping on the beds rather than being struck with batons.
When asked to explain
his failure to record other injuries which were
depicted in the photographs, he testified that the plaintiff might
have suffered
such injuries later that day. When asked to explain the
multiple injuries that were noted by the medical expert, the nurse
informed
the court that the plaintiff might have suffered those
injuries in a different incident. With this evidence, the defendant
closed
its case.
The impugned
judgment
[17]
The trial court found that the plaintiff’s evidence was riddled
with contradictions and
inconsistencies. She relied on Section 32 (1)
(c) of the Correctional Services Act and found that the defendants
were acting in
self-defence. She reasoned that the members could not
have surrendered themselves to the lawlessness and unruly behaviour
of the
plaintiff. Furthermore, the trial court found that according
to the J88, the medical expert and the nurse, the injuries suffered
by the plaintiff were nothing but abrasions and surface wounds which
did not require any stitching. She, therefore, found that
the
injuries as demonstrated by the plaintiff in his evidence were
exaggerated and fabricated to support his claim.
The parties
‘contentions
[18]
At the commencement of the hearing, condonation was granted for the
respondent’s late delivery
of the heads of argument. In
summary, Mr Cordell, counsel for the appellant argued that the trial
court erred in the manner in
which it evaluated the evidence. It
failed to apply the law applicable in evaluating the evidence of two
irreconcilable versions.
Due to this, the trial court made incorrect
factual findings, so he argued.
[19]
Ms Pango, counsel for the respondent argued that the nurse who
examined the plaintiff immediately
after the incident correctly
documented that the injuries he sustained were minimal. She argued
the injuries sustained by the plaintiff
were consistent to being hit
or bumped against the steel beds. At no stage was the plaintiff
assaulted. Therefore, the Magistrate
was correct in her approach on
the issues raised, so she argued.
The applicable law
and evaluation of evidence
[20]
The correct approach to be adopted in analysing and assessing the
evidence in a civil case is as follows:
where there are two
mutually destructive versions, as in the present case, in order to
succeed, the plaintiff, should satisfy
the court on a preponderance
of probabilities that his version is true and accurate and therefore
acceptable, and that the other
version advanced by the defendant is
false or mistaken and falls to be rejected
[1]
.
[21]
As early as 1974, our courts emphasized that when one talks about a
plaintiff having discharged the burden
of proof that was placed upon
him, one truly means that the court must be satisfied on a balance of
probabilities that the plaintiff
was telling the truth, and as such,
his version was therefore accepted.
[2]
[22]
In determining the veracity of the evidence, the court should weigh
and test the plaintiff’s allegations
against the general
probabilities. As a result, evaluating a witness’s credibility
will inevitably involve taking the case’s
probabilities into
account. If the balance of probabilities favours the plaintiff, then
the court should accept his version as
being probably true. If,
however, the probabilities are evenly balanced in the sense that they
do not favour the plaintiff’s
case any more than they do the
defendant’s, the plaintiff can only succeed if the court
nevertheless believes him and is
satisfied that his evidence is true
and that the defendant’s version is false
[3]
.
[23]
It is impermissible to evaluate the evidence in a compartmentalised
approach, the law requires
that evidence should be evaluated as a
whole.
[24]
It is by now, axiomatic, that the powers of the appeal court in
resolving factual disputes are
limited. The Constitutional Court in
Makate
v Vodacom (Pty)(Ltd)
[4]
referred
to
R
v Dhlumayo and Another
[5]
and made the following judicial remarks:
per
Jafta J (with Mogoeng CJ, Moseneke DCJ, Khampepe J, Matojane AJ,
Nkabinde J and Zondo J concurring:
“
[37]
Ordinarily appeal courts in our law are reluctant to interfere with
factual findings made by the trial courts, more particularly
if the
factual finding is depended on the credibility of the witnesses who
testified at the trial.”
[25]
At paragraph 40 of
Makate’s
case, the Constitutional
Court reiterated that the esteem afforded to a trial court’s
credibility findings cannot be overstated.
The court held,
‘‘
[40]
If it emerges from the record that the trial court misdirected itself
on the facts or that it came to a wrong conclusion, the
appellate
court is duty-bound to overrule factual findings of the trial court
so as to do justice to the case. In Bernert this
court affirmed:
‘
What
must be stressed here is the point that has been repeatedly made. The
principle that an appellate court will not ordinarily
interfere with
a factual finding by the trial court is not an inflexible rule. It is
recognition of the advantages that the trial
court enjoys which the
appellate court does not. These advantages flow from the observing
and hearing the witnesses as opposed
to reading ‘the cold
printed word’. The main advantage being the opportunity to
observe the demeanour of the witnesses.
But
this rule of practice should not be used to ‘tie the hands of
the appellate courts’. It should be used to assist,
and not to
hamper, an appellate court to do justice to the case before it. Thus,
where there is misdirection on the facts by the
trial court, the
appellate court is entitled to disregard the findings on facts and
come to its own conclusion on the facts as
they appear on the record.
Similarly, where the appellate court is convinced that the conclusion
reached by the trial court is
clearly wrong, it will reverse
it.’’
[6]
(my
underlining)
[26]
With these legal principles in mind, I now turn to consider whether
the trial court misdirected
itself in resolving the factual disputes
before it. Upon evaluation of the trial court’s findings, it
appears from the record
that the trial Magistrate failed to recognize
the traditional principles applicable to the evaluation of two
mutually destructive
versions. The trial court isolated the version
of the plaintiff and made credibility findings with no proper
evaluation of the
totality of the evidence.
[27]
On the probabilities, the scuffle that occurred between the plaintiff
and the correctional officials
led to a situation where the plaintiff
had to be immediately seen by the nurse. Because of the nature of the
pain and injuries
he sustained, after approximately four days from
the date of the incident, he had to be examined by a medical expert.
Concerning
the nature of the injuries, the evidence demonstrates the
following common cause facts: that the plaintiff had a wound that was
bleeding on the right side of his head; he had multiple bruises and
abrasions on his back; he had linear marks on his back and
arms; he
was experiencing excruciating pain all over his body. Despite the
fact that the medical expert and the nurse differ in
the number of
injuries they observed, both confirmed that the plaintiff suffered
multiple injuries. In medical terms, multiple
injuries refer to more
than three injuries in one’s body.
[28]
Considering the corroborative evidence of the two medical
practitioners, the finding by the trial
court that the injuries were
exaggerated was a misdirection on her part. This notwithstanding, the
cause of the plaintiff’s
injuries needs a thorough scrutiny, in
that, Sgt Xothovu denied that the plaintiff was assaulted by the
correctional officials.
[29]
The definition of assault in both criminal and civil law is the same.
CR Snyman: Criminal law
7
th
Edition (Chapter XV) defines
assault as an offence consisting of an unlawful and intentional act
or omission which results in another’s
bodily integrity being
directly or indirectly impaired; or inspiring a belief in another
person that such impairment of her bodily
integrity is immediately to
take place. According to
JC Van der Walt and JR Middley;
Principles of Delict at page 111; paragraph 78; the infringement of
one’s bodily integrity can be physical and psychological.
[30]
In an attempt to justify the conduct of the correctional officials,
the trial court placed too
much emphasis on the principles of
self-defence. Additionally, the court invoked Section 31(c) of the
Correctional Services Act
[7]
(the Correctional Services Act) which authorises correctional
officials to use minimal force against an inmate for self-defence
in
certain circumstances. It is worth noting that the principles of
self-defence are universally applicable in both civil and criminal
law. In this regard, I borrow the words by Chaskalson P, in
S
v Makwanyane
,
where he stated, ‘self-defence is recognised by all legal
systems’.
[8]
[31]
CR Snyman
in
CRIMINAL LAW 7
th
ed
states the following, at page 85,
“
A
person acts in private defence and her act is therefore lawful,
if
she uses force to repel an unlawful attack which has commenced, or is
imminently threatening, upon her or somebody else’s
life,
bodily integrity, property of other interest which deserves to be
protected
, provided the defensive act
is necessary to protect the interest threatened, is directed against
the attacker, and is reasonably
proportionate to the attack.”
(my underlining)
[32]
In the case under consideration, Sgt Xothovu testified that the
plaintiff attacked him, and he
used no force to repel the imminent
attack. Although he felt threatened, no force was used by any
of the correctional officials
except that the plaintiff was
restricted to remain in one area and to seat down due to his unruly
behaviour. He explained that
the plaintiff might have injured himself
by bumping against the steel beds. It therefore stands to reason
that, under the circumstances,
the application of the principles of
self-defence was misplaced.
[33]
Despite the caution that is needed in evaluating the plaintiff’s
evidence as a single witness,
his evidence finds corroboration in Sgt
Xothovu’s. It is common cause that during the physical
altercation, there were more
than two well-built and energetic
correctional officials in the cells. During the routine search, the
plaintiff was compelled to
sit down forcefully because he could not
explain who the owner of the contrabands was. At some point, the
plaintiff sought refuge
by running between the beds and hiding from
the correctional officers. One of the members pulled him from where
he was hiding.
It is a further common cause that the correctional
officials had batons in their possession.
[34]
No matter how small the space in the cell was, the evidence presented
by Sgt Xothovu that the
plaintiff was never assaulted does not tally
with the rules of logic. If the plaintiff was not under attack, as
demonstrated by
Sgt Xothovu, there would be no reason for him to run;
no reasonable explanation as to why he would be pulled from under the
bed.
Furthermore, there would be no reason for him to suffer
multiple linear marks on his back; severe abrasions and bruises all
over
the body including eyes, cheeks and limbs and there would be no
reason for immediate medical intervention. The glaring admission
made
by Sgt Xothovu that he wanted to take out his baton is consistent
with the plaintiff’s version that the correctional
officials
possessed batons which they used during the attack.
[35]
Gleaning from the record, the plaintiff’s version finds a lot
of corroboration sounds probable
and is consistent. He presented a
credible and reliable version, in particular on material issues, when
compared with false and
improbable evidence of the correctional
officials. Despite the rigorous cross-examination, he stuck to the
version of his story
and his cross-examination bore no fruits.
Immediately after the assault, he was seen by the nurse who treated
the injuries. He
reported to the nurse that he was assaulted. He
opened a criminal case of assault. On the same day of the incident,
he took photographs
to keep a record of the injuries he sustained as
a result of the attack. After a week he was seen by an experienced
medical expert
whose qualifications and credentials were never placed
in dispute. The medical expert’s evidence and or opinion which
include
the fact that severe force was used during the attack
remained intact and were never rebutted by any other expert evidence.
[36]
Sgt Xothovu’s claim that he was attacked by the plaintiff was
false and could not have
been accepted by the trial court. The
plaintiff consistently maintained that he could not have endangered
his life by attacking
physically fit and active correctional
officials. Sgt Xothovu’s assertion that the plaintiff suffered
the injuries from himself
against the steel beds is found to
contradict what the medical expert and the plaintiff presented and is
therefore false. In an
attempt to counter the defendant’s
liability to the claim, the nurse presented a defensive image as well
as a highly speculative
hypothesis, stating that the plaintiff must
have sustained the injuries in separate incidents before the medical
examination. There
was, however, no evidence presented to support
this proposition. Similarly, in his record of the injuries sustained
by the plaintiff,
Olivier relied on what he was told. His testimony
did not take the case any further.
[37]
In my considered opinion, the trial Magistrate misdirected herself in
the manner in which she
evaluated the evidence. On the conspectus of
evidence, I am convinced that the trial court’s findings were
wrong. In the
result, the appeal must succeed.
Quantum
[38]
Both parties proposed that in the event the appeal court finds in
favour of the plaintiff, it
would be more convenient to deal with the
issue of quantum instantaneously than to remit the matter to the
trial court. In the
interest of justice, I am amenable to this
proposition.
[39]
It is self-evident that in determining an appropriate award, I am
required to utilize a broader discretion
to grant what I deem to be
just and sufficient recompense.
[9]
[40]
Recently, our courts have made awards of a similar nature in a number
of cases
[10]
,
some of which were referred to by counsel for the appellant. Counsel
for the respondent made no reference to the previous cases,
however,
argued that the appeal court should grant whatever it deems fair and
just under the circumstances of this case.
[41]
The following passage which is extracted from the case of
Protea
Assurance Ltd v Lamb
[11]
per Potgieter JA finds relevance in this matter,
Headnote: In assessing
general damages for bodily injuries, the process of comparison with
comparable cases does not take the form
of a meticulous examination
of awards made in other cases in order to fix the amount of
compensation; nor should the process
be allowed so to dominate the
enquiry as to become a fetter upon the Court's general discretion in
such matters. Comparable cases,
when available, should rather be used
to afford some guidance, in a general way, towards assisting the
Court in arriving at an
award which is not substantially out of
general accord with previous awards in broadly similar cases, regard
being had to all the
factors which are considered to be relevant in
the assessment of general damages. At the same time it may be
permissible, in an
appropriate case, to test any assessment
arrived at upon this basis by reference to the general pattern of
previous awards
in cases where the injuries and their
sequelae
may have been either more serious or less than those in the case
under consideration.’
[42]
In determining a fair and adequate compensation, I am duty-bound to
consider a broader spectrum
of facts and circumstances connected to
the plaintiff and the injuries suffered by him, including their
nature, permanence, severity
and impact on his life. Furthermore, I
have to take into account that the tendency for awards now is higher
than they once were
as a result of changing values in our society,
improvement in the standard of living and the fact that awards have
traditionally
been lower in this country than in many others.
[12]
[43]
Reverting to the facts of the present case, the plaintiff suffered
grievously at the time of
the assault. After about four days and upon
examination by the medical expert, the injuries he sustained were
still visible. The
photographs that were handed in as exhibits
clearly show how the assault affected him. The photograph of a
bleeding wound on his
head coupled with other injuries which were
counted to eighty clearly explains why he suffered excruciating pain
all over his body.
This notwithstanding, there is no indication
that the plaintiff suffered a permanent injury. As the servants of
the State, the
correctional officials have a responsibility to
‘respect, protect, promote and fulfil’
[13]
all fundamental rights entrenched in the Bill of Rights. In
casu
,
they acted contrary to what our Constitution
[14]
embraces.
[44]
Having considered all the factors above, I am of the view that a
global amount of R100 000
(One hundred thousand rand) would be a
fair and adequate award for wrongful assault.
Order
[45]
Accordingly, the following order is issued:
1.
The appeal succeeds.
2.
The order of the trial court is set
aside and replaced with the following order:
(i)
Judgment is granted in favour of the
plaintiff against the defendant.
(ii)
The defendant is ordered to pay a
global amount of R100 000(One hundred thousand rand) for
wrongful assault. The defendant
shall pay Interest at 10, 25%
from 14 days after the date of this judgment, to the date of payment.
(iii)
The defendant is ordered to pay
costs of this action
3.
The respondent shall pay the
appellant’s costs of the appeal.
N CENGANI-MBAKAZA
ACTING JUDGE OF THE
HIGH COURT
I agree.
N BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel
for the appellant
Adv
C. Cordell
Instructed
by
SWARTS
ATTORNEYS
C/o
N.N. Dullabh & CO
Attorneys
for the Appellant
5
Bertram Street
MAKHANDA
Ref:
Mr N Dullabh
Counsel
for the defendants
Adv
M Pango
Instructed
by
STATE
ATTORNEY (GQEBERHA)
C/o
AKHONA GEORGE & ASSOCIATES
118
High Street
MAKHANDA
Ref:
Ms A George
Date
heard
06
October 2023
Date
delivered
16
January 2024
[1]
National Employers’ General Insurance Co Ltd v Jagers
1984 (4)
SA 437
(ECD) at 440D-441A.
[2]
Koster Ko-operative Landbounmaantskappy Bpk v Suid Afrikaanse
Spoorwee 1974(4) SA 420 (W) at 426-7;see also
African Eagle Assurance Co Ltd v Cainer
1980
(2) SA 324.
[3]
National Employer’s Insurance Co Ltd v Jagers at fn 1
(supra).
[4]
(CCT52/15)[2016] ZACC13;2016(6) BCLR709 (CC);2016(4) SA 121(CC) (26
April 2016)
[5]
1948 (2) SA (A)
[6]
Bernet v Absa Bank Ltd
[2010] ZACC 28
;
2011 (3) SA 92(CC)
;
2011(4)BCLR 329 (CC) at para 106
[7]
Act 111 of 1998
[8]
S v Makwanyane and Another (CCT3/94) [
1995] ZACC 3
; 1995(6) BCLR
665
[1995] ZACC 3
; ;
1995 (3) SA 391
;
[1996] 2 CHRLD 164
;
1995 (2) SACR 1
(6 June
1995)
[9]
Peterson v Minister of Safety and Security (1173/2008) [2009]
ZAECGHC65 (23 September 2009) at para 21.
[10]
In
Bam
v Minister of Correctional Services
[2012] ZAECPEHC 66(18 September 2012], the plaintiff was assaulted
with batons and sustained bruising and swelling of arms, bruising
of
abdomen and back; haematoma of the head and a severe fracture of the
knee. He was awarded 180 000 in general damages;
In
Nomboniso
Plaatjies v Minister of Police
[2022] ZAECMKHC 8 (3 May 2022), the appellant sustained bruises,
scratch marks on her wrists, shock and pain in her thumb and
back
following an assault by police. She was awarded R50 000; In
Mhlengi
v Minister of Police
[2021] ZAECGHC 59(29 June 2021), the appellant was hit and dragged
to a police vehicle. He was awarded R40 000 for general
damages; In
Minister
of Police v Heleni
[2023] ZAECMKHC 55(11 May 2023, the court awarded general damages to
a sum of R200 000. In this matter the respondent was
violently
pushed against the wall, grabbed on the ground and stamped on her
right foot;
Minister
of Justice and Correctional Services v Simon
[2022]
JOL 53352
(ECG), in an appeal which emanated from the proceedings in
the Magistrate’s Court, the respondent was injured on his
anklebone
and leg that resulted in him struggling to walk and
suffering pain for extended period; his ears became swollen; hearing
was
impeded; and the bruises he sustained on his back caused him
associated back pain for some time. On appeal, the court confirmed
an award of R30 000 in favour of the respondent.
[11]
1971 (1) SA 530
A.
[12]
Peterson v Minister of Safety and Security fn. 9(supra) at para 21.
[13]
Chapter 2, of the Bill of Rights, with particular reference to
Section 7 (2) The Constitution of the Republic of South Africa
Act
108 of 1996(as adopted on 08 May 1996 and amended on 11 October 1996
by the Constitutional Assembly. Section 7(1) provides,’
The
Bill of Rights is a cornerstone of democracy in South Africa. It
enshrines the rights of all people in our country and affirms
the
democratic values of human dignity, equality and freedom’.
[14]
Section 12(1) states,’ Everyone has a right to freedom and
security of the person, which includes the right-(c) to be free
from
all forms of violence from either public or private sources; (d) not
to be tortured in any way; (e) not to be treated or
punished in a
cruel, inhuman or degrading way.